DEVELOPMENT, SUPPORT, LICENSE & REVENUE-SHARING AGREEMENT
This Development, Support, License & Revenue-Sharing Agreement (“Agreement”) is
entered into as of June __, 2013 (the “Effective Date”) between Intel Corporation, a
Delaware corporation having a principal place of business at 2200 Mission College
Blvd., Santa Clara, CA 95054 (“Intel”), and Sony Pictures Television Networks Games
Inc., a Delaware corporation having a principal place of business at 10202 W.
Washington Blvd., Culver City, CA 90232 (“Sony”). Intel and Sony may be referred to in
this Agreement individually as a “Party” and collectively as “Parties.”
For good and valuable consideration (including, without limitation, the mutual covenants
contained in this Agreement), the receipt and sufficiency of which is acknowledged, and
intending to be legally bound, the Parties agree as follows:
1.0 BACKGROUND
Intel is paying Sony to develop and support the game “Wheel of Fortune” to run on
Windows 8 Metro optimized for Intel’s “portable All-in-One” computing products,
and the Parties will share revenue on distribution of the Application, in accordance
with this Agreement.
2.0 DEFINITIONS
2.1
“pAIO” means Intel’s portable All-in-One category of personal computing
products which integrate the processors into the monitors and include multitouch, multi-user capable displays that may detach from the base and lay
flat upon a surface.
2.2
“Application” means the (i) machine-readable object code and associated
documentation and materials (whether provided in hard copy or electronic
form) for the Sony Windows 8 Metro application “Wheel of Fortune”
optimized for Intel’s pAIO products in accordance with the SOW attached as
Exhibit A, and (ii) any updates, enhancements, modifications or error
corrections thereto supplied to Intel during the course of this Agreement.
2.3
“Background Intellectual Property Right(s)” means all Intellectual
Property Rights (defined below) belonging to, controlled, or licensed by
either Party that are (i) developed, conceived, obtained, licensed, or
acquired prior to the Effective Date of this Agreement, or (ii) developed,
conceived, obtained, licensed, or acquired independently of this Agreement.
2.4
“CNDA” means the Parties’ Corporate Non-Disclosure Agreement No.
36495840.
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
1
2.5
“Copyright(s)” means copyrights, copyright application,
registrations, and all analogous rights in foreign jurisdictions.
2.6
“Deliverable(s)” means the Application and other items to be delivered to
Intel by Sony in accordance with the SOW.
2.7
“Feedback” means any input, comments, responses, modifications,
improvements, opinions, corrections, bug reports, suggestions, or other
information a Party provides to the other Party, whether orally or in writing,
regarding technical requirements, the Application or the other Party’s
products (including their definition, design or validation).
2.8
“Intellectual Property Right(s)” means the following worldwide intellectual
property rights arising under statutory or common law: Copyrights, Mask
Works, Patents and Patent Rights, Trademarks and Trademark Rights, and
all intellectual property rights relating to trade secrets (and similar concepts)
and confidential information.
2.9
“Mask Works” means mask work rights, mask work registrations, and all
analogous rights in foreign jurisdictions.
2.10
“Patents” and “Patent Rights” mean inventions, discoveries, and rights
arising from or related to all classes or types of patents and design patents
(including,
without
limitation,
originals,
divisions,
continuations,
continuations-in-part, renewals, extensions, or reissues) issued or issueable thereon, whether now existing or hereafter filed, issued, or acquired,
and application for these classes or types of patent rights. “Patents” and
“Patent Rights” include all analogous rights in foreign jurisdictions.
2.11
“SOW” means the Statement of Work attached to this Agreement as
Exhibit A.
2.12
“Trademarks” and “Trademark Rights” mean all worldwide corporate
names, trade names, logos, icons, trademarks, service marks, trade dress,
and analogous corporate or product identifiers and other indicators of brand,
affiliation or origin (including without limitation, rights under application and
extensions), now existing, or hereafter filed or acquired.
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
2
copyright
3.0 SERVICES; ACCEPTANCE AND DELIVERY
3.1
Sony will perform the development, maintenance and support services
described in the SOW in accordance with the milestones schedule and
other terms of the SOW. Sony acknowledges that time is of the essence for
this Agreement with respect to the development work, and will use
commercially reasonable efforts to complete the services and provide the
Deliverables in accordance with this Agreement.
3.2
Payment for each Deliverable (other than the payment upon execution of
this Agreement) will not be due until such Deliverable is formally accepted
by Intel in writing, or deemed accepted by Intel, in accordance with the
SOW (“Accept” “Accepted” or “Acceptance”). Final payment will not be
due until the Application is made available to end users for download on
Microsoft’s Windows 8 Marketplace app store.
3.3
Sony will include with every copy of the Application, its own End User
License Agreement.
3.4
Intel will either Accept or reject in good faith each Deliverable (in writing)
within five (5) business days after Intel receives each Deliverable (each an
“Acceptance Period”). Any rejection must be based upon failure of the
Deliverable to meet Intel’s reasonable requirements as described (and
reasonably implied) in Exhibit A. If Intel fails to Accept or reject any
Deliverable within the Acceptance Period, Intel will be deemed to have
Accepted that Deliverable. If Intel rejects a Deliverable, Intel will provide a
written description of all the issues that fail to meet the requirements
reflected in Exhibit A and the corrections required, and the Acceptance
process outlined in this Section 3.4 will be repeated for each Deliverable
until Accepted. In the event Intel rejects a Deliverable two or more times,
Intel may in its sole discretion terminate this Agreement immediately upon
written notice and without any opportunity to cure.
4.0 LICENSES
4.1
Object Code Licenses from Sony to Intel.
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
3
(a)
Subject to the terms and conditions of this Agreement (including the
revenue-sharing terms in Exhibit B of the SOW), Sony grants to Intel
(including its majority-owned affiliates) a non-exclusive,
revocable,
worldwide, fully paid-up license under Sony’s Intellectual Property Rights to
use, disclose, reproduce, display publicly and perform publicly the
Application solely for purposes of evaluation, demonstration and internal
use.
(b)
Subject to the terms and conditions of this Agreement (including the
revenue-sharing terms in Exhibit B of the SOW), Sony grants to Intel
(including its majority-owned affiliates) a non-exclusive, revocable,
worldwide, fully paid-up license under Sony’s Intellectual Property Rights to
distribute, offer for sale, export and import the Application indirectly through
its channel partners (including without limitation for pre-installation by
OEMs), including without limitation the right to sublicense such rights
through multiple tiers of distribution.
(c)
In the event that the Application is not available for download within
thirty (30) days as described in Section 7.2, and subject to the terms and
conditions of this Agreement (including the revenue-sharing terms in
Exhibit B of the SOW), Sony grants to Intel a non-exclusive, revocable,
worldwide, fully paid-up license under Sony’s Intellectual Property Rights to
directly distribute, offer for sale, export and import the Application to end
users.
(d)
Without limiting the foregoing, it is understood and agreed that the
Application will be branded “Sony,” not “Intel.” Subject to the terms and
conditions of this Agreement, Sony grants to Intel a non-exclusive,
revocable, worldwide, royalty-free license under Sony’s Trademark Rights to
use the Sony Trademarks in connection with Intel’s marketing activities
relating to the license of the Application as set forth in this Agreement;
provided that Intel receives Sony’s prior written approval in each instance.
4.2
Feedback License. This Agreement does NOT obligate either Party to
provide the other Party with Feedback. However, should either Party
provide the other Party with Feedback (the “Providing Party”), in writing,
clearly marked as Feedback, the Party receiving the Feedback (the
"Receiving Party") will be free, in its sole discretion, to: (a) use and
disclose the Feedback under the Providing Party’s trade secret rights
embodied in the Feedback (as provided by the Providing Party) only; and
(b) reproduce, perform, display, create derivative works of and distribute the
Feedback, all under Providing Party’s copyrights embodied in the Feedback
(as provided by the Providing Party) only.
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
4
Neither Party grants to the other Party any license or right under any of such
Party’s Patent Rights, whether expressly, by implication, estoppel, statute or
otherwise, under this Agreement; the Copyright and trade secret licenses in
this Section 4.2 as to Feedback are the only licenses or rights granted by
each Party with respect to Feedback. Accordingly, Sony must not use any
Intel Trademarks for any purpose without Intel’s prior written permission.
5.0 IP OWNERSHIP
5.1
Background IP. This Agreement does not change the Parties’ ownership
of their respective Background Intellectual Property Rights.
5.2
The Deliverables. The Application, title to the Deliverables and any
Intellectual Property Rights (except for any of Intel’s Background Intellectual
Property Rights) embodied in the Application or the Deliverables will remain
with Sony and its licensors.
6.0 CONFIDENTIALITY; PUBLICITY
The Parties’ CNDA governs all exchanges of Confidential Information (as defined
in the CNDA) between the Parties in connection with this Agreement. The
existence of, and terms and conditions of, this Agreement are considered
Confidential Information.
Subject to the express requirements of this Agreement and the CNDA, however,
each Party may: (a) have similar agreements with others; (b) independently
design, develop, manufacture, acquire or market technology, products or services
similar to or competitive with the Deliverables or the other Party; and (c) conduct
its business in whatever way it chooses.
Neither Party may publish any press release, client listing or analogous public
reference to this project or the Parties’ relationship under this Agreement, without
the other Party’s prior written consent.
7.0 FINANCIAL TERMS
7.1
Development Services & Deliverables. When Sony believes it has
completed a milestone for which Intel owes a payment under this
Agreement, Sony must submit an invoice to Intel that sets forth in
reasonable detail a description of the milestone(s) achieved. As part of
Sony’s compensation for performance of the development services, if the
milestone has been satisfied, Intel will pay Sony the corresponding amount
on the Payment Schedule set forth in the attached Exhibit A. All payments
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
5
are subject to the payment and tax set forth in Section 7.3, below. No other
compensation to Sony is contemplated under this Agreement.
7.2
Payment. Intel will pay Sony in United States Dollars the amount properly
due and payable under each of Sony’s invoices within thirty (30) days of
written Acceptance by Intel of the milestone completed. All payments by
Intel to Sony must be made in accordance with the following instructions:
[add SPTN wire info]. Any payment which is due under the terms of this
Agreement on a day which is not legally a business day will be payable on
the next business day. The total amount of development services funds will
not exceed $140,000.00 (USD).
7.3
Taxes. Each party will pay, collect and remit any taxes as may be imposed
with respect to any compensation or transactions under this Agreement in
accordance with applicable laws, rules, regulations and orders of
governmental authority having jurisdiction. If Intel is prohibited by law from
making payments to Sony unless Intel deducts or withholds taxes therefrom
and remits taxes to the local taxing jurisdiction, then Intel will (i) duly
withhold applicable taxes, (ii) will pay to Sony the remaining net amount
after the taxes have been withheld, and (iii) within 30 days of payment,
deliver to Sony original documentation or a certified copy evidencing such
remittance (a “Withholding Tax Receipt”). In the event Intel does not
provide a Withholding Tax Receipt in accordance with the preceding
sentence, Intel shall be liable to and shall reimburse Sony for the
withholding taxes deducted from the payment. Each party is responsible
for its own respective income taxes or taxes based on gross revenues,
including but not limited to business and occupation taxes.
7.4
Revenue-Sharing & Distribution. The Parties will distribute and share
revenue with respect to the Application in accordance with Exhibit B to this
Agreement. Within thirty (30) days after Intel Accepts the Production Quality
versions of the Application Sony will submit the Application to the Microsoft
Windows 8 Metro App Store for certification, and upon Microsoft’s approval,
distribution of the Application via the Microsoft Windows 8 Metro App Store.
For the avoidance of doubt, Sony will also be permitted to distribute the
Production Quality version of the Application Accepted by Intel through
other commercially reasonable channels in its sole discretion..
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
6
7.3
Audits. Each Party will create, and maintain for one (1) year after the
termination or expiration of this Agreement, commercially reasonable books
and records regarding its compliance with the Revenue-Share obligation of
Section 7.4 and Exhibit B of this Agreement. Each Party will have the right,
not more than once every twelve (12) months, to appoint an independent
auditor (acceptable to the other Party) at its own expense to examine those
books and records during the audited Party’s normal business hours, at a
mutually agreed time/place, to verify the other Party’s compliance. If any
such audit discloses material non-compliance (including, without limitation,
underpayment of the revenue share pursuant to Exhibit B of more than ten
percent (10%) during the audited time period), the audited Party will
reimburse the other Party for the reasonable costs of such audit.
7.4
Miscellaneous. Sony must send all invoices under this Agreement to the
billing contact identified in the SOW. Sony will bear the cost of shipping and
the risk of loss of all Deliverables while in transit. Except as expressly
provided for in the SOW, each Party is responsible for its own expenses,
charges and costs under this Agreement.
8.0 TERM AND TERMINATION
8.1
Term. Subject to Section 8.3, the term of this Agreement will commence on
the Effective Date and will continue until termination by either Party in
accordance with Section 8.2.
8.2
Termination. Either Party may terminate this Agreement if the other Party
breaches any material term of this Agreement and does not cure the breach
within ten (10) business days after receiving written notice of breach. Intel
may also terminate this Agreement upon written notice if (a) Intel terminates
the Agreement pursuant to Section 3.4 herein or (b) if Sony fails to distribute
an Accepted Application through, at a minimum, the Windows 8 Metro App
Store and Microsoft has certified the Application for distribution in the
Windows 8 Metro App Store. Either Party may also terminate this
Agreement in accordance with Section 11.3.
8.3
Effect of Expiration/Termination. Upon any expiration or termination of
this Agreement:
a. Intel will pay to Sony all sums actually due Sony by Intel through the
termination effective date as set forth in Section 7 “Payment Terms” of
Exhibit A;
b. each Party will promptly destroy all originals and copies of the other
Party’s tangible Confidential Information in its possession or control; and
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
7
c. Exhibit B and the Parties’ rights and obligations under Exhibit B will
survive, except if the Agreement has been terminated pursuant to
Section 8.2.
Additionally, upon any expiration or termination of this Agreement, all
other provisions of this Agreement that by their nature and surrounding
circumstances reasonably should survive the expiration or termination of
this
Agreement
will
survive,
including
without
limitation,
Articles 2.0 (Definitions), 4.2 (Feedback License), 5.0 (IP Ownership),
6.0 (Confidentiality; Publicity),, 8.3 (Effect of Expiration / Termination),
9.0 (Open Source and Limited Warranties), 10.0 (Warranty Disclaimer),
11.0 (Indemnity), 12.0 (Limitation of Liability) and 13.0 (Miscellaneous).
9.0 LIMITED WARRANTIES
9.1
General Warranties. Each Party represents and warrants that: (a) it has
the legal capacity and authority to enter into this Agreement, to perform the
obligations and to consummate the transactions contemplated under this
Agreement; (b) this Agreement is valid and binding upon and enforceable
against it; (c) its execution and performance of this Agreement will not result
in the violation of any provision of any other agreement or applicable law or
any judgment or decree binding upon it; and (d) it is not the subject of any
pending or, to the best of its knowledge, threatened claim, action, judgment,
order, or investigation that could adversely affect its ability to perform its
obligations under this Agreement or the business reputation of the other
Party.
Sony further represents and warrants that: (u) it will provide its services and
the Deliverables under this Agreement in a professional and competent
manner consistent with the standards in the technology industry; (v) for a
period of ninety (90) days following Intel’s Acceptance of the final
production-quality Application (“90-day Warranty Period”), the Application
will perform in accordance with the SOW and will not contain any errors or
bugs that would prevent its operation in conformance with Intel’s reasonable
requirements or specifications; ; (x) it has the necessary right, title, and
interest to provide the Deliverables to Intel in accordance with this
Agreement; and (y) the Deliverables will be free of liens and encumbrances
and will not violate the rights of any third Parties.
9.2
Warranty Regarding Malicious Code. Sony further warrants that it runs
the software portion of each version of the Deliverables through industrystandard anti-virus and anti-malware programs, and to Sony’s knowledge,
the Deliverables do not contain any viruses, malware, trojan horses, time
bombs, or other harmful or disabling code.
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
8
During the 90-day Warranty Period, Sony will promptly repair or
replace the relevant Deliverables at no additional cost to Intel. After
the 90-day Warranty Period, Sony shall repair, correct, or improve
the Application at Intel’s request; provided, however, that Sony will
provide such additional maintenance and support services to Intel on
a time-and-materials basis at $300.00 per hour..
10.0
WARRANTY DISCLAIMER
NEITHER PARTY MAKES ANY WARRANTIES OR REPRESENTATIONS OF
ANY KIND UNDER THIS AGREEMENT, EXPRESS OR IMPLIED, OTHER
THAN AS EXPRESSLY SET FORTH IN ARTICLE 9.0. EACH PARTY
SPECIFICALLY
DISCLAIMS
THE
IMPLIED
WARRANTIES
OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND
ANY WARRANTY AGAINST INFRINGEMENT OF ANY INTELLECTUAL
PROPERTY RIGHT OF ANY THIRD PARTY.
11.0
INDEMNITY
11.1
Sony will defend, indemnify and hold harmless Intel and Intel’s majorityowned subsidiaries, affiliates and any of its licensees (collectively, the
“Indemnitees”) from and against any costs, expenses (including
reasonable attorneys’ fees), claims, demands, losses, damages, or
liabilities (collectively, “Claims”) arising out of, or incurred as a result of or
in connection with, (a) breach by Sony of the warranties in Sections 9.1(x),
9.1(y), or 9.2 (subject to Section 11.2), (b) actual or alleged infringement
or misappropriation by Sony of any third party Patent, Copyright, trade
secret, Trademark, Mask Work or other intellectual property rights related
to any of the Deliverables, alone or in combination with any other product
(subject to Section 11.2), (c) any gross negligence or willful or intentional
misconduct by Sony, or (d) any act or omission by Sony that results in
personal injury or death, or damage to property.
11.2
Sony will not be liable to the Indemnitees under Section 11.1(a) or
Section 11.1(b) to the extent a Claim arises out of (i) post-delivery
modifications by the Indemnitees or another third party without Sony’s
prior written consent, (ii) Sony’s compliance with Intel instructions, designs
or specifications not included in the SOW, or (iii) combination, operation or
use of the Deliverables with any devices, programs, data, methods or
specifications that (x) are not described in the SOW and (y) are not
provided by Sony, to the extent infringement would not have occurred but
for such combination, operation or use.
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
9
11.3
In the event Section 11.1(a) or Section 11.1(b) applies, Sony will use
commercially reasonable efforts, at its sole expense, to:
(a) procure for the Indemnitees the right to continue using the
Deliverables;
(b) replace the Deliverables with non-infringing Deliverables; or
(c) modify the Deliverables so they become non-infringing.
If Sony’s efforts under Sections 11.3(a), 11.3(b) and 11.3(c) are
unsuccessful or if the aforementioned alternatives are not reasonably
available, either Party may terminate this Agreement upon thirty (30) days
advance written notice to the other Party, and Sony will refund to Intel all
amounts paid by Intel for the relevant Deliverable(s).
11.4
Sony has the right to control the defense of Claims that are subject to
indemnification under this Article 11.0, at its own expense, except that:
(1) the Indemnitees in their sole discretion may have their own counsel
consult with Sony regarding the defense of the Claim (and Sony will
cooperate with them in connection with this consultation) without the
Indemnitees waiving, forfeiting or in any manner losing any of their rights
under Article 11.0; (2) Sony will not undertake any liabilities or make any
admissions on behalf of any of the Indemnitees or in their name when
entering any settlement or compromise concerning any Claim that is
subject to indemnification under this Article 11.0; and (3) Sony must
provide prior written notice to the Indemnitees within a reasonable time
(but in any event no less than seven (7) business days) before any
settlement is reached or entered into and provide a detailed summary of
all material aspects of the settlement.
Except to the extent expressly provided in this Agreement, Sony will not
be obligated to pay any damages or costs resulting from a Claim under
this Article 11.0. This Agreement does not create any third party
beneficiaries, and confers no rights or remedies to any person or entity
against Sony, other than the Indemnitees.
The Indemnitees will promptly notify Sony of any Claim that is subject to
indemnification under Article 11.0. For the sake of clarity, Sony will not be
relieved of its obligations under Article 11.0 if the Indemnitees fail to
provide such notice, except to the extent Sony’s ability to effectively
defend a Claim is materially hampered as the proximate result of such a
failure.
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
10
12.0
LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT
FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE,
EXEMPLARY OR SPECIAL DAMAGES ARISING OUT OF OR RELATED TO
THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS,
LOSS OF USE OR LOSS OF BUSINESS, EVEN IF THAT PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES
ACKNOWLEDGE THAT THESE LIMITATIONS ON POTENTIAL LIABILITIES
ARE AN ESSENTIAL ELEMENT IN THIS AGREEMENT.
EXCEPT FOR (A) SONY’S INDEMNITY OBLIGATIONS UNDER ARTICLE 11.0,
OR (B) SONY’S LIABILITY FOR BREACH OF THE CNDA, IN NO EVENT WILL
SONY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE
PAYMENT AMOUNTS ACTUALLY DUE AND NOT PAID TO INTEL UNDER
THIS AGREEMENT.
13.0
MISCELLANEOUS
13.1
Governing Law; Venue; Jurisdiction. All matters arising out of or related to
this Agreement, including without limitation all matters connected with its
performance, will be construed, interpreted, applied and governed in all
respects in accordance with the laws of the State of New York, without
reference to conflict of laws principles. The United Nations Convention on
Contracts for the Sale of Goods does not apply to this Agreement.
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
11
13.2
Arbitration. All actions or proceedings arising in connection with, touching
upon or relating to this Agreement, the breach thereof and/or the scope of
the provisions of this Section shall be submitted to JAMS (“JAMS”) for
final and binding arbitration under its Comprehensive Arbitration Rules
and Procedures if the matter in dispute is over $250,000 or under its
Streamlined Arbitration Rules and Procedures if the matter in dispute is
$250,000 or less], to be held in New York City, before a single arbitrator
who shall be a retired judge, in accordance with New York Civil Practice
Law & Rules Section 7501 et seq. The arbitrator shall be selected by
mutual agreement of the parties or, if the parties cannot agree, then by
striking from a list of arbitrators supplied by JAMS. The arbitration shall be
a confidential proceeding, closed to the general public. The arbitrator shall
assess the cost of the arbitration against the losing party. In addition, the
prevailing party in any arbitration or legal proceeding relating to this
Agreement shall be entitled to all reasonable expenses (including, without
limitation, reasonable attorney’s fees). Notwithstanding the foregoing, the
arbitrator may require that such fees be borne in such other manner as the
arbitrator determines is required in order for this arbitration clause to be
enforceable under applicable law. The arbitrator shall issue a written
opinion stating the essential findings and conclusions upon which the
arbitrator’s award is based. The arbitrator shall have the power to enter
temporary restraining orders and preliminary and permanent injunctions.
Neither party shall be entitled or permitted to commence or maintain any
action in a court of law with respect to any matter in dispute until such
matter shall have been submitted to arbitration as herein provided and
then only for the enforcement of the arbitrator’s award; provided, however,
that prior to the appointment of the arbitrator or for remedies beyond the
jurisdiction of an arbitrator, at any time, either party may seek pendente
lite relief in a court of competent jurisdiction, without thereby waiving its
right to arbitration of the dispute or controversy under this section.
Notwithstanding anything to the contrary herein, Intel hereby irrevocably
waives any right or remedy to seek and/or obtain injunctive or other
equitable relief or any order with respect to, and/or to enjoin or restrain or
otherwise impair in any manner, the production, distribution, exhibition or
other exploitation of any motion picture, production or project related to
Sony, its parents, subsidiaries and affiliates, or the use, publication or
dissemination of any advertising in connection with such motion picture,
production or project. THE PARTIES HEREBY WAIVE THEIR RIGHT TO
JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING
UNDER, IN CONNECTION WITH, TOUCHING UPON OR RELATING TO
THIS AGREEMENT, THE BREACH THEREOF AND/OR THE SCOPE
OF THE PROVISIONS OF THIS SECTION, WHETHER SOUNDING IN
CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR
FRAUDULENT INDUCEMENT THEREOF.
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
12
13.3
Notices. All notices permitted or required under this Agreement must be
in writing and delivered by prepaid personal delivery, certified or registered
mail, or commercial delivery service, return receipt requested, and will be
deemed given upon receipt. Notices must be sent to the Parties’
addresses indicated on the first page of this Agreement and marked as
follows : For Intel, “Attention Legal Department,” For Sony, “Attention
EVP, Legal Affairs” with a copy to “c/o Sony Pictures Television, Attention
General Counsel.”
13.4
No Agency. The Parties are independent contractors. Nothing contained
herein may be construed as creating any agency, employment
relationship, franchisee, partnership, principal-agent or other form of joint
enterprise between the Parties. Each Party is solely responsible for its
respective taxes, withholdings, and other statutory or contractual
obligations of any sort, including, but not limited to, Workers’
Compensation Insurance.
13.5
Assignment. Neither party may transfer or assign this Agreement or any
portion hereof, by operation of law or otherwise, to any third party without
the other Party’s prior written consent (any attempt to do so will be null
and void).
13.6
Severability. If any provision of this Agreement is unenforceable or invalid
under any applicable law or so held by applicable court decision, such
unenforceability or invalidity will not render this Agreement unenforceable
or invalid as a whole, and, in such event, such provision will be changed
and interpreted so as to best accomplish the objectives of such
unenforceable or invalid provision within the limits of applicable law or
applicable court decisions. Additionally, the rights and remedies of the
Parties under this Agreement are in addition to any other rights and
remedies that may be available at law or in equity.
13.7
Waiver. The failure of either Party to require performance by the other
Party of any provision hereof will not affect the full right to require such
performance at any time thereafter; nor will the waiver by either Party of a
breach of any provision of this Agreement be taken or held to be a waiver
of the provision itself.
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
13
13.8
Headings. The section headings appearing in this Agreement are inserted
only as a matter of convenience and in no way define, limit, construe, or
describe the scope or extent of such section or in any way affect this
Agreement.
13.9
No Rule of Strict Construction. Each Party has had a reasonable
opportunity to consult its own counsel and to participate in the drafting of
this Agreement. Accordingly, regardless of the Parties’ respective roles in
drafting this Agreement, no rule of strict construction may be applied
against either Party.
13.10 Force Majeure. Neither Party will be responsible for its failure to perform
due to causes beyond its reasonable control such as acts of God, fire,
theft, war, riot, incidents of terrorism, labor disputes, carrier issues, utility
issues, embargoes, or acts of civil or military authorities. The applicable
Party’s performance will be excused during any period of delay caused by
the foregoing events.
13.11 Electronic Signatures; Counterparts. This Agreement may be executed by
facsimile, scanned .pdf signature, or other electronic means of accurately
transmitting an image (“Faxed”) signature. Each Party agrees that it will
not contest the validity of the execution of this Agreement solely on the
basis of a Faxed signature. Faxed copies of this Agreement, including the
signature pages, will be deemed originals. The Parties will deliver original
execution copies of this Agreement to one another as soon as practicable
following execution. This Agreement may be executed simultaneously in
two or more counterparts, each of which will be considered an original, but
all of which together will constitute one and the same instrument.
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
14
13.12 Entire Agreement; Modification. This Agreement, including its exhibits, and
the CNDA constitutes the entire agreement between Sony, and Intel and
supersedes any and all oral or written agreements previously existing
between Sony and Intel, with respect to the subject matter of this
Agreement and the CNDA. This Agreement may only be amended or
supplemented by a writing that refers explicitly to this Agreement and is
signed by duly authorized representatives of Sony and Intel. In the event
of a conflict between this Agreement and any of its exhibits, the terms and
conditions of this Agreement will take precedence and control.
In witness whereof, the Parties’ authorized representatives have executed this
Agreement effective as of the Effective Date.
INTEL CORPORATION
SONY PICTURES TELEVISION
NETWORKS GAMES INC.
By:
By:
Printed Name:
________________________________________________
Printed Name:
________________________________________________
Title:
Title:
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
15
EXHIBIT A
STATEMENT OF WORK (SOW)
This SOW is Exhibit A to the Development, Support, License & Revenue-Sharing
Agreement (“Agreement”) between Intel Corporation and Sony Pictures Television
Networks Games Inc. All capitalized terms not defined in this SOW have the meanings
specified in the Agreement.
1. Project Description
Intel is looking for existing multi-user and multi-touch Application to port on their new
platform called portable All In One (“pAIO”) with a quick turnaround. pAIO is a new
kind of computing for multi-touch, multi-user Application that may detach from the
base and lay flat upon a surface.
Sony is proposing to develop one (1) application to the pAIO. This Application will be
enhanced to provide a better experience for the consumer market that Intel is
targeting (enhancements detailed below). If Intel requests a change in scope to this
SOW, the Parties will negotiate in good faith any change to the fees that will be due
to Sony and to the time and/or materials required for Sony to accommodate the
change in scope.
2. Deliverables
The Application must function in Windows 8 “Metro” mode, support 10 touch points
be multi-player (1-2-3 users) capable, contain no open priority 1 or showstopper
bugs as defined by Intel, and contain all enhancements described in this SOW.
The Application will be titled “Wheel of Fortune.”
The Application will include the following features:




Optimized for 18”-27” form factor, supporting 16:9 aspect ratio and an HD
resolution of 1920x1080)
Allow for multi-player play on the same device
Include license terms that establish the license permissions directly between
Sony and the End User
All features outlined in Section 3 of this Exhibit
The Manufacturer’s Suggested Retail Price for each Application is $2.99.
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
16
3. Application Features and Design
The Application will be based upon the television game show “Wheel of Fortune” and
mimic the look and feel of the game show. The Application may be played locally or
online. Solo and multiplayer play will be available in both versions. The online version
will require a sign in via Facebook, Twitter, or user e-mail. The Application will include
the follow features:
Feature Name
Windows 8
Support
Input Devices
Feature Parity
Local mode
IAP
Notifications
Facebook
Twitter
Mode
Languages
Definition
Windows 8 application will be created to support
the Intel portable All-in-One
Application will be updated to support Keyboard
and pointer input. Either the on-screen keyboard
or an external keyboard will be supported for
screens with text input.
The application will include feature parity with the
1.2 or later feature set as seen in the iOS version
of the application.
Ability to play application without connection to the
internet
No internet log in via Facebook, Twitter, or any
other website is required for play
In App purchasing will be supported via the
Windows Store
Notifications will be implemented via Facebook
notifications and Windows Live Tile. For example,
in the online multiplayer game, users will be notified
that it is their turn.
The application will be updated to support a native
Facebook authentication and integration
framework. Facebook sign in will not be required
for play.
The application will be updated to support a native
Twitter authentication and integration framework.
Twitter sign in will not be required for play.
Windows 8 “Metro”
English
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
17
4. Application Look and Feel
The Application will be modified from the Android and iOS versions to make use of the
unique features of the pAIO. Key pAIO Application features include:
 Orientation – The game board should be oriented so that the players can sit on
three sides of the screen. The middle player should be located on the longer side
of the screen with the other two players sitting on the shorter ends of the screen.
As the game play continues the board should rotate to show a different view
from the contestant’s perspective to spin the wheel and watch the wheel spin.
 Ability for user to spin the wheel via the touch screen using a side-to-side
swiping motion
 Increased wheel dimensions to utilize larger pAIO screen, must be scalable to
various screen sizes and resolutions
 Increased puzzle dimensions to utilize larger pAIO screen, must be scalable to
various screen sizes and resolutions
 Simultaneous Multi user interaction – 1 to 3 players
 Local mode player option – ability to play offline without any internet connectivity
or website log in
 Option for asynchronous online play and in app purchases
 Five theme packs will come standard with base game: Today, Millennium,
Nineties, Eighties, Premier
 Five theme packs are available for purchase through the in application store:
School Time, Monster Pack, Hero Pack, Night on the Town, and Tropical
Vacation
 At least 1,000 puzzles will come standard with the base game
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
18
5. Maintenance and Support
Maintenance: Sony will provide commercially reasonable maintenance services
(e.g., bug fixes and error corrections) for the Application, free of any additional
charge, during the 90-day Warranty Period (defined in Section 9.1(v) of the
Agreement). After that 90-day Warranty Period expires, subject to payment of the
Maintenance Fee (defined below), Sony will provide commercially reasonable bug
fixes, error corrections and other maintenance services for the Application during the
term of the Agreement.
Support: Commencing upon Intel’s Acceptance of the final production version of the
Application, and continuing for the term of the Agreement, Sony will provide FAQ
access and Virtual Tier One Customer Support for the Application as follows:

Host and provide access to an FAQ website that contains answers to Frequently
Asked Questions about hardware and Operating System requirements for
playing the Application;
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
19


Provide an e-mail address for customer support. A support representative will
use the information included in the e-mail to determine the customer’s issue with
the Application. The support representative will (x) analyze the symptoms
provided by the customer; and (y) work to identify the underlying problem for
errors that are replicable by the support representative using hardware and
operating systems available to the support representative. Once the support
representative identifies the underlying problem, a possible solution will be
provided (if available) through a response to the open ticket. Virtual Tier One
Customer Support is limited to troubleshooting methods such as
uninstalling/reinstalling the Application, verification of proper hardware and
software set up, and assistance with navigating around the Application; and
Provide Application documentation and support page indicating that Sony is
responsible for a limited time for providing all level one/tier one technical support,
and that Intel has no responsibility for providing any technical support to
customers in connection with the Application.
Intel is not obligated to provide any maintenance or support to Sony, Original
Equipment Manufacturers or end user customers under the Agreement.
6. Project Schedule/Deliverables
Delivery Date
June 17, 2013
June 24, 2013
July 5, 2013
Deliverable
 User Acceptance Testing
 Alpha-Quality Version in executable
file or Windows 8 Metro executable
equivalent
 Beta-Quality Version executable file
or Windows 8 Metro executable
equivalent
 Final Production Quality version
executable file or Windows 8 Metro
executable equivalent
 High Resolution Sony and Wheel of
Fortune logos to be used at press
events, OEM discussions, and
keynote speech slides at industry
show
 Application made available to end
users for download on Microsoft’s
Windows 8 Marketplace app store
7. Payment Terms
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
20
Intel will pay Sony a Development Fee of $140,000 in accordance with the following
milestone schedule:



Upon the Effective Date of the Agreement: $70,000.
Upon Intel Acceptance of the Beta Quality version of the Application and
associated Deliverables: $21,000.
Upon Intel Acceptance of the Production Quality version of the Application
and associated Deliverables: $49,000.
With respect to the Beta Quality Version, the following applies to Intel’s
payment obligation:


If Sony delivers the first Beta Quality Version on or within 10 business days of
the Delivery Date and Intel Accepts it, Intel will pay Sony the full
Development Fee amount of $21,000.
Intel will Accept or reject the Beta Quality Version pursuant to the terms set
forth in Section 3.4 of the Agreement.
With respect to the Production Quality Version, the following applies to Intel’s
payment obligation:
 If Sony delivers the first Production Quality Version on or within 20 business
days of the Delivery Date and Intel Accepts it, Intel will pay Sony the full
Development Fee amount of $49,000.

If Sony delivers first Production Quality Version more than 20 business days
after the Delivery Date but less than 30 business days after the Delivery Date,
and Intel Accepts it, the total amount of Development Fees for this milestone
due to Sony will be $35,000.

If Sony delivers the first Production Quality Version more than 30 business
days after the Delivery Date, Intel will have the right to terminate this SOW
and the Agreement and upon such termination, Sony will refund to Intel the
amount of $49,000 in Development Fees. If Intel chooses to Accept the
Production Quality Version of the Application more than 20 days after the
Delivery Date, Intel’s payment obligation will be reduced to $ 21,000.

Intel will accept or reject the Production Quality Version pursuant to the terms
set forth in Section 3.4 of the Agreement.
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
21
Sony may invoice Intel upon each milestone event, and Intel will pay each such
amount within thirty (30) days following Intel’s receipt of invoice.
For any Maintenance, as defined in Section 5 of this Exhibit, provided by Sony after
the 90-day Warranty Period as described in Section 5 of this SOW, Intel will pay
Sony on a time-and-materials basis at the rate of USD $300 per hour (“Maintenance
Fee”).
8. Unity Game Engine
Intel may approve, at its own discretion, up to $20,000 in additional financial support
to Sony to be used for the creation of a new version of the Unity Game Engine.
The following requirements must be met before Intel will approve the additional
funding:
 Sony must demonstrate to Intel that a new version of the Unity Game Engine
is required for the Application to meet the requirements stated in this
Statement of Work; and
 Sony must demonstrate to Intel that a new version of the Unity Game Engine
is required for the Application to be approved for distribution in the Microsoft
Windows 8 Metro Store.
Additional Unity funding will be paid on the following schedule:
 $10,000 due within 30 days following receipt of invoice after Intel approves
the additional support for the development for the Unity Game Engine
 $10,000 due within 30 days following receipt of invoice after Intel Accepts the
Production Quality version of the Application and associated Deliverables.
9. Key Contacts
Intel:
Sarah Bienvenue
[email protected]
Software Innovation Manager
Sony Pictures Television Networks Games Inc.:
Name
Title
10. Locations / Billing Contacts
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
22
Company
Address/Contact
Sony Pictures Television
Networks Games Inc.
10202 W. Washington Blvd.
Culver City, CA 90232
Attn: Winnie Man
[email protected]
Intel Corporation
Post Contract Management
1900 Prairie City Rd
Folsom CA 95630
Intel
Attn: Janice Austin FM3-78
[email protected]
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
23
EXHIBIT B
REVENUE-SHARING
This is Exhibit B to the Development, Support, License & Revenue-Sharing Agreement
(“Agreement”) between Intel and Sony. All capitalized terms not defined in this
Exhibit B have the meanings specified in either the Agreement or the SOW or both.
1. Definitions.
For purposes of this Exhibit B, the following additional definition applies:
“Customer Transaction” means each instance in which a customer is authorized to
receive, decrypt and play a copy of the Application via the Microsoft Windows 8
Metro App Store on the pAIO in exchange for payment of a license fee to Sony.
2. Revenue Share Fees.
Solely until the 100% Point (as defined below) is reached, Sony will pay revenuesharing fees (“Revenue-Share Fees”) to Intel, which will be a percentage of gross
revenue actually received by Sony from customers for Customer Transactions, less
amounts paid to the storefront, customer returns and point of sale taxes (“Net
Revenue”). The Revenue-Share Fees payable by Sony to Intel for each Customer
Transaction will be as follows:
A. Sony will pay to Intel thirty percent (30%) of the Net Revenues received by Sony
for each Customer Transaction until Intel recovers one hundred percent (100%) of
all costs paid to Sony under this Agreement, (i.e., $140,000 if Intel makes all the
payments contemplated under this SOW) (the “100% Point”);
3. Pricing.
The “Distributor Price” for each Application shall be determined by Sony in its sole
discretion. Sony currently anticipates pricing the Application at $2.99. Sony may
update the Distributor Price at any time in Sony’s sole discretion.
4. Reports and Payments.
Revenue-Share Fees will be paid on a quarterly basis. Within fifteen (15) days of
each calendar quarter-end, Sony will provide to Intel a fee statement (hereinafter the
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
24
“Fee Statement”, as further described below) indicating the Revenue-Share Fees
payable for that quarter, as well as reasonable supporting details.
Intel will then invoice Sony for the amount due (as specified in the Fee Statement)
within forty-five (45) days after receipt of each Fee Statement. Sony will not be
obligated to pay any amount not invoiced within such time period.
Sony will have thirty (30) days to submit payment by wire transfer (for Intel, to
Citibank, New York, New York, General Account Number 38385954; or to such other
account as Intel may indicate in writing). All payments will be in US dollars, and Intel
will be responsible for the wire transfer fee. If the Revenue-Share Fees due in any
quarter are insufficient to justify the wire transfer fee (e.g., if they are less than
$500), then upon mutual written agreement by the Parties (email is sufficient), the
Parties may agree to postpone the wire transfer until the following quarter or such
other time as the Parties may agree.
The Fee Statement will be in a mutually acceptable format and will show (a) the
number of Customer Transactions during the relevant quarter, and (b) the amount of
Revenue-Sharing Fees due under this Agreement for Customer Transactions. Fee
Statements will be sent to the following:
To Intel at:
Intel Corporation
MS FM6-78
1900 Prairie City Rd
Folsom, CA 95630
Attn: Post-Contract Management / Janice Austin
[email protected]
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
25
Intel - Sony:
Development, Support, License & Revenue-Sharing Agreement
Intel Confidential
26